How One Proposed New EPA Regulation Could Decimate The Aftermarket

Updated: 3/7/16 – Since we published this article on 2/29 16 we have been contacted by more than one shop who has stated that laste last summer they were visited by multiple EPA representatives. These representatives requested records and began questioning the shop owners. The shop owners immediately sought the advice of legal counsel and declined further comment to EPA questioning. Due to the ongoing nature of these shop owner’s situations we can not name them in this story or update. However, the threat would seem to be more real than we thought.

On July 13, 2015, the EPA introduced a new proposal for new regulations related to heavy-duty vehicles. As part of a directive from the Obama administration for the EPA to develop guidelines for heavy-duty vehicles that “will take us well into the next decade.”

The opening paragraphs of the 629-page proposal quickly outline the vehicles involved as “Combination tractors; trailers used in combination with those tractors; heavy-duty pickup trucks and vans; and vocational vehicles.” These regulations are according to the proposal and slated to take effect in 2018.

For most of our audience reading this, it would seem then that these new regulations have nearly zero impact on the world of automotive performance, and the automotive aftermarket, right? After all, who doesn’t want cleaner semi-trucks, and even cleaner heavy-duty pickups and vans? Rather it is the wording and references placed inconspicuously into these proposals relating specifically to race cars that has SEMA and the automotive enthusiast world in a flurry.

Under the proposed regulations, cars like Power Automedia’s own Project BlownZ would be illegal to build.

Buried on page 321 in the document is the following: 67. Section 86.1854-12 is amended by adding paragraph (b)(5) to read as follows:

§ 86.1854-12 Prohibited acts. * * * * *(b) * * *(5) Certified motor vehicles and motor vehicle engines and their emission control devices must remain in their certified configuration even if they are used solely for competition or if they become nonroad vehicles or engines; anyone modifying a certified motor vehicle or motor vehicle engine for any reason is subject to the tampering and defeat device prohibitions of paragraph (a)(3) of this section and 42 U.S.C. 7522(a)(3).

Given that this document is originally outlined in its opening to deal with heavy-duty vehicles, this particular language comes as both a surprise and a shock to many enthusiasts. In early February 2016 the Internet erupted with all manner of stories regarding this proposed regulation. Some of those articles amounted to fear mongering, others discounted the proposal entirely, and some presented the facts.

We spoke with Ashley Ailsworth, an attorney for SEMA, regarding these proposed regulations to find out what the EPA is up to with concern to the automotive aftermarket, how this may impact enthusiasts, and what each enthusiast can do to help stop something that appears to have an extreme detriment to our hobby, and even our way of life.

Normally these four vehciles might not have much in common. Under the proposed regulations all of them would be affected.

Breaking Down The Language

The Clean Air Act was never supposed to apply to race cars, and has even been amended by Congress in the past to leave room for enthusiasts. -Ashley Ailsworth, Attorney for SEMA

Certified motor vehicles and motor vehicle engines are pretty much any car or truck you can walk into the dealership and buy. Anything street legal, that came with emissions equipment would fall under this category. Engines would cover any OEM type replacement engine.

According to Ailsworth, what the language within this proposed guideline represents is a complete 180-degree shift on the EPA’s position of building a race car. If the race car to be built was originally sold as a street legal vehicle, it would fall under this rule, and the rule would make it illegal to modify that vehicle in any way that impacts its emissions profile — even if that vehicle is no longer going to be used on public roads.

Building a race car from a newly-purchased street car would be illegal under the proposed EPA guidelines.

“The Clean Air Act was never supposed to apply to race cars, and has even been amended by Congress in the past to leave room for enthusiasts,” says Ailsworth. “This represents a major position change by the EPA from their previous position, which excluded vehicles that were used solely for competition purposes.”

Imagine this scenario. You’re an enthusiast. You start building a car as a bolt-on affair. The project escalates, and eventually you make it to a level where the car is no longer safe, practical, or useful as a street vehicle. Whether that vehicle is a drag car, road racer, rally car, or off-road truck, you continue to modify and race your vehicle, but it never sees public streets. Previously the EPA had no issues with this, however, that position has changed. “The EPA’s new position as outlined in this guideline is that you may race your vehicle, it’s just illegal to modify it in any way that would alter it from its original emissions certification,” says Ailsworth.

But isn’t a race car considered a “non-road” vehicle? According to Ailsworth racecars are not considered non-road vehicle by the EPA. “Non-road vehicles are outlined by the EPA as airplanes, boats, trains, dirt bikes, ATVs, and lawn mowers,” says Ailsworth.

The proposed regulation also impacts emissions certified vehicle engines, making it illegal to modify or use those engines, or install them in a race vehicle in a manner that changes their emissions profile from original. That has the potential to impact the engine swap and engine-building world that rely on core engines to start builds, or engine swaps to build cars. Under this regulation using an emission certified engine out of the junkyard to build as a racing or modified engine would also be outlawed.

Many engine swaps, and building racing engines from junkyard cores, would also be outlawed under the proposed regulations.

What Is The EPA’s Endgame?

Ailsworth says SEMA representatives have spoken to the EPA regarding this proposal. The EPA has maintained that this is not a position change, and that they are simply “clarifying” its previous positions. That’s not all, however. Ailsworth also says it appears that the EPA’s goal is to be able to bring enforcement actions against the aftermarket, shops, enthusiasts, or anyone that it deems is violating these regulations.

These lawsuits, or enforcement actions, would allow the EPA to pursue legal action against aftermarket manufacturers for producing products that change the emissions profile of any road-going vehicle. If the government wins this case, the EPA would be able to assess fines against the manufacturer for all products sold that were named in the suit, and could potentially seize manufacturing equipment to produce those products.

The steep fines, plus seizures of property, could result in a number of companies, both large and small, potentially being put out of business by the EPA. The economic impact alone has the potential to cost the United States economy billions of dollars in the loss of sale of those products, and thousands of jobs from displaced workers if the manufacturer was forced to shut down.

The EPA’s new position as outlined in this guideline is that you may race your vehicle, it’s just illegal to modify it in any way that would alter it from its original emissions certification. -Ashley Ailsworth, Attorney for SEMA

Shops would not be immune either. While smaller outfits might be small fish in a big sea, larger, better-known builders of race cars, engine builders, and installers might see serious consequences. Consider that the language allows for altering emissions certified engines. This means it could be interpreted that a junkyard engine, pulled from a modern emissions certified vehicle, and modified beyond its EPA emissions profile, would be illegal to both perform these modifications on, to sell that engine, to install it in any vehicle, or to use it in any way.

This focus on parts used, or potentially used, on the road would impact nearly every aspect of the automotive aftermarket — including tuning, exhaust, fuel system, cylinder heads, intakes and intake manifolds, throttle bodies, power adders, rearend gear changes. You name it — if it impacts how the vehicle may pollute or consume fossil fuel, it’s fair game under the EPA’s new stance.

Industry Impact

The potential impact on the automotive aftermarket, small racing series, shops large and small, as well as all manner of retailers is nothing short of devastating. “If these proposals are finalized by the EPA and become regulations, they carry with them the force of law,” says Ailsworth. That means that the regulations carry severe penalties for both companies, and even potentially individuals who modify their own cars.

Imagine a world with no more drag racing series that are built around street cars. No more Trans Am, or SCCA cars built from existing chassis, where all engines must be crate engines, or stock engines, and must be installed in either tube chassis, body-in-white, or turnkey race cars. No more super stock, no more stock eliminator, no more modified classes.

Ailsworth says SEMA’s concern is that such a hostile stance by the EPA towards the automotive aftermarket could result in the loss of U.S. jobs and businesses. Companies that are based overseas, away from EPA regulations, will simply sell and ship their goods online from places like China and India. Customers would have to pay import taxes and tariffs, and lose the quality assurances that come with products made in the United States.

The potential impact to the aftermarket is nothing short of staggering. Jobs lost, enthusiasts forced to purchase products from overseas manufacturers, and irreparable damage to the U.S. economy.

What Can You Do?

If these proposals are finalized by the EPA and become regulations, they carry with them the force of law. – Ashley Ailsworth, Attorney for SEMA

SEMA, through the SEMA Action Network (SAN), is already working to fight this regulation. Due to the regulation being buried within heavy-duty vehicle regulations, SEMA did not discover the proposal regarding race cars and the aftermarket until sometime in December 2015. The original deadline for comments on this issue was October 1, 2015. However, Ailsworth says that the EPA is still accepting comments.

SEMA submitted its comments regarding the issue at the end of December. Those comments in full can be found at the end of this article.

As enthusiasts we must unite against regulations that are so detrimental to our hobby. This is a fight for the life of the automotive aftermarket against the juggernaut of the EPA, a government agency that has the full weight and support of the United States government behind it. It is a true David and Goliath match.

About the author

Don Creason

Don Creason is an automotive journalist with passions that lie from everything classic, all the way to modern muscle. Experienced tech writer, and all around car aficionado, Don's love for both cars and writing makes him the perfect addition to the Power Automedia team of experts.